1 

FEDERAL ELECTION COMMISSION

1050 FIRST STREET, N.E.

WASHINGTON, D.C. 20463

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of ) 

 ) MURs 7724/7752

Johnny Teague for Congress, et al. ) 

) 

STATEMENT OF REASONS OF COMMISSIONER ALLEN J. DICKERSON

INTRODUCTION

The Constitution prohibits the government from discriminating against 

religious expression,1 from privileging commercial speech over religious speech,2 and 

from expressing official disapproval concerning the free exercise of religion.3 In these

Matters, our Office of General Counsel (“OGC”) recommended, and several of my 

colleagues supported, an approach that would have done all those things. 

Accordingly, I voted to dismiss these Matters pursuant to this agency’s 

prosecutorial discretion, as the Office of General Counsel recommended.4 But I

1 Discrimination on the basis of religious viewpoint is viewpoint discrimination under the First 

Amendment’s Free Speech Clause. Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 

831 (1995) (“It is, in a sense, something of an understatement to speak of religious thought and 

discussion as just a viewpoint, as distinct from a comprehensive body of thought...We conclude, 

nonetheless, that...viewpoint discrimination is the proper way to interpret the University’s objections 

to Wide Awake”).

2 Watchtower Bible and Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 165, (2002) (“Even if 

the interest in preventing fraud could adequately support the ordinance insofar as it applies to 

commercial transactions...that interest provides no support for its application to [the religious] 

petitioners, to political campaigns, or to enlisting support for unpopular causes”). 

3 U. Christian Scientists v. Christian Science Bd. of Dirs., First Church of Christ, Scientist, 829 F.2d 

1152, 1161-1162 (D.C. Cir. 1987) (“Government may not convey any message of endorsement or 

disapproval of religious activity...”) (internal citations and quotation marks omitted).

4 Heckler v. Chaney, 470 U.S. 821 (1985). I also voted to find no reason-to-believe a violation had 

occurred, where our Office of General Counsel had made that recommendation. Certification at 1-4 

(“Cert.”), MURs 7724/7752 (Johnny Teague for Congress, et al.), May 31, 2023. I adopt the reasoning 

of the First General Counsel’s Report on that issue.

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declined to adopt OGC’s recommendation that the Commission issue letters of caution

expressing its official disapproval of Respondents’ sincere religious expression.5

I. The Speech and the Speaker

The Church at the Cross (“Church”) has been formally organized as a nonprofit 

corporation with the State of Texas since 1952. One of the Church’s employees is its 

current senior pastor, Dr. Johnny Mark Teague. As part of its mission “to seek and 

save those who are lost,”6 the Church conducts outreach to the broader community of 

Houston, including through television commercials on local cable.7 The ads, including 

one that aired in February and March of 2020, feature Dr. Teague, who welcomes 

viewers to attend services at the Church.8 The Church also maintains an online 

presence on Facebook. It posts content there, including video of Pastor Teague 

preaching and photos of events.

In the Church’s February-March 2020 television communication, Pastor 

Teague speaks to the viewer, saying: 

Have you ever asked a friend, ‘Do I have anything in my teeth?’ Did you want 

them to tell you the truth, or tell you what made you feel good? A lot of people 

go to Church to make them feel good. God’s [W]ord does that but he also brings 

you the truth. What we need to clean up our lives and experience [H]is blessing. 

I’m Dr. Johnny Teague and I invite you to join us at the Church at the Cross 

where we study every Sunday God’s truth at [the Church’s address].”9

The ad includes “a text banner... at the bottom of the screen containing the Church’s 

logo, address, phone number, and schedule of worship times.”10 Dr. Teague is also 

identified on screen by name and the position of “Pastor.”11

5 Cert. at 3-4. 

6 Teague Resp. at 1, Apr. 7, 2020. 

7 First Gen’l Counsel’s Report at 9-10 (“FGCR”), MURs 7724/7752 (Johnny Teague for Congress, et al.), 

Feb. 9, 2023 (describing television communications). 

8 Id. at 5-6. 

9 Id. at 6.

10 Id. 

11 Id. 

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This is obviously not a campaign ad, so one can reasonably wonder why the 

Federal Election Commission is involved at all. 

As it happens, in 2020, Dr. Teague successfully sought the Republican 

nomination for a seat in the U.S. House of Representatives.12 Four residents of 

Houston filed identical two-page complaints concerning, inter alia, the Church’s TV 

spot.13 The complaints alleged violations of the Internal Revenue Code, binding legal 

guidance from the Federal Communications Commission, and one of our regulations 

implementing the Federal Election Campaign Act of 1971, as amended (“FECA” or 

“Act”). 

Pastor Teague, his campaign committee, and the Church took advantage of 

their legal right to file a response, and OGC provided the Commission with a series 

of recommendations, with which I largely agree. 14 I write separately, however, to 

address two points: (1) the state of Commission law concerning the television 

advertisements discussed above, and (2) OGC’s recommendation – supported by three 

of my colleagues – that the Commission caution the Church from running similar 

advertisements in the future.

II. Campaign Finance Law and the Church’s Televised Invitation

a. The Church’s advertisement and the Commission’s regulatory guidance 

concerning coordinated communications.

Candidates for Congress face a panoply of restrictions on their activities and 

associations. They are barred from receiving campaign contributions from all 

12 Dr. Teague subsequently lost the general election.

13 FGCR at 2, n.1 (describing complaints and noting their “identical” text).

14 The complaints focus on the television communication discussed above, but also suggested there 

were additional campaign finance violations due to Teague’s position at the Church and the Church’s 

use of Facebook. OGC recommended against enforcement on those allegations, for both legal and 

prudential reasons. FGCR at 27-28 (listing recommendations); id. at 24-27 (finding Church use of 

social media did not violate FECA and recommending no-RTB); id. at 23 (“Other than receiving mail 

there, holding the food fairs in 2020[,] and the May 28, 2022 lunch, it is unclear whether the Church 

would have provided any other service that would provide something of value to the Committee. 

Therefore, any value derived from Teague’s apparent limited use of the Church facilities may have 

been minimal”). I agreed with those recommendations, which accord with caselaw. E.g. Canyon Ferry 

Rd. Baptist Church of E. Helena, Inc. v. Unsworth, 556 F.3d 1021, 1028-1030 (9th Cir. 2009) (incidental 

use of church property may not be constitutionally regulated as in-kind “participation in a campaign 

finance effort”). 

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corporations, including those formed on a not-for-profit basis.15 Further,

“expenditures made by any person in cooperation, consultation, or concert, with, or 

at the request or suggestion of, a candidate...shall be considered to be a contribution 

to such candidate.”16 Such “coordinated communications,” if done in conjunction with 

a prohibited source like a Texas nonprofit corporation, are illegal regardless of the 

amount spent. 

OGC concluded that the Church’s broadcast buy was a coordinated 

communication because it met the relevant three-part test under our regulations. 17

That complex standard requires (1) a third-party payor, (2) content regulable as a 

“electioneering communication,” and (3) conduct indicative of “material” or 

“substantial” interaction between the candidate and third-party payor.18 Due to the 

nature of the communication here—a church ad featuring a message from the pastorcandidate and broadcast in the general geographic area of the Congressional district 

that Dr. Teague was seeking—the Church’s communication appears to have met that 

bar.

In particular, because the televised invitation merely mentioned the name of a 

candidate within 30 days of Texas’s March 2020 primary election and plausibly cost 

more than $10,000,19 it may have qualified as an “electioneering communication,” 

which comes with its own reporting obligations regardless of coordination.20

b. Commission regulations provide no safe harbor for religious expression.

None of this should matter. Even if this advertisement met our highlytechnical standards designed for campaigning, one would assume that unambiguous

religious expression was exempted from regulation a long time ago. Especially 

because, in other contexts, the Commission has created safe harbors for 

15 52 U.S.C. § 30118(a); Fed. Election Comm’n v. Beaumont, 539 U.S. 146, 149 (2003) (“Since 1907, 

federal law has barred corporations from contributing directly to candidates for federal office. We hold 

that applying the prohibition to nonprofit advocacy corporations is consistent with the First 

Amendment”).

16 52 U.S.C. § 30116(a)(7)(B)(i).

17 FGCR at 13-16.

18 11 C.F.R. § 109.21.

19 Dr. Teague’s response suggested that the Church paid for the ad using some portion of a $60,000 

donation. Teague Resp. at 1. 

20 52 U.S.C. § 30104(f).

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“communications [that] are not intended to benefit the...candidate’s election” or are 

otherwise “not made for the purpose of influencing the...candidate’s election.”21

But, embarrassingly, the Commission failed to adopt a safe harbor for the 

speech of nonprofit groups like the Church despite an opportunity to do so. In 2010, 

a proposed rule “would have excluded from the definition of a coordinated 

communication any public communication paid for by a non-profit organization 

described in 26 U.S.C. § 501(c)(3),” including nonprofit religious organizations, “in 

which a candidate expresses or seeks support for the payor organization...unless the 

public communication PASOs22 the candidate or another candidate who seeks the 

same office.”23 

Had the Commission taken that opportunity, this would be an open-and-shut 

case. Instead, the Commission declined to act because it was aware of “only [one] 

Commission action in which a 501(c)(3) organization paid for a public communication 

that satisfied all three prongs of the coordinated communication rule.”24 As these

Matters amply show, that reluctance was error. Nevertheless, the 2010 Commission 

did explicitly note our “prosecutorial discretion to dismiss enforcement matters 

involving such communications.” 25 

Perversely, the Commission has created a safe harbor protecting parallel

commercial expression. We have exempted “[any] public communication in which a 

Federal candidate is clearly identified only in his or her capacity as the owner or 

operator of a business that existed prior to the candidacy” where those ads are similar 

to previous commercials run by the business and “do[] not promote, support, attack, 

or oppose that candidate or another candidate who seeks the same office as that 

candidate.”26 

21 Fed. Election Comm’n, “Coordinated Communications,” 71 Fed. Reg. 33190, 33201 (June 8, 2006)

(creating safe harbor from coordinated communications rules for candidates appearing in ads for other 

candidates or soliciting funds for certain organizations regulated under 26 U.S.C. § 501(c)).

22 PASO is an acronym for “Promotes, Attacks, Supports, or Opposes” and covers general advocacy for 

or against federal candidates seeking office.

23 Fed. Election Comm’n, “Coordinated Communications,” 75 Fed. Reg. 55947, 55960 (Sept. 15, 2010).

24 Id.

25 Id. 

26 11 C.F.R. § 109.21(i).

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In other words, had the Church’s ad been for “Dr. Teague’s Automotive Center” 

and encouraged viewers to “come on down to the lot this Sunday to view our 

outstanding selection of well-priced used vehicles,” it would have been unequivocally

exempt from regulation.27 Thus, our regulations privilege commercial speech over 

similarly-situated religious expression. “This would be merely bizarre were religious 

speech simply as protected by the Constitution as other forms of private speech; but 

it is outright perverse when one considers that private religious expression receives 

preferential treatment under the Free Exercise Clause.”28

One of my colleagues has argued that the Church’s ministry does fall into this 

exemption because “the Church’s ad featuring Teague soliciting attendance and 

membership at the Church is a commercial communication entitled to the safe 

harbor, like any other business’s ad.” 29 While I agree that nonprofit organizations can 

and do sell goods, and that some can be said to “operate as businesses,” I disagree

that the Church’s ad here is offering or advertising a commercial transaction. 30

Rather, the Church is engaged in direct religious ministry,31 which cannot be 

analogized to advertising for a Goodwill store or school bake sale. After all, “the mere 

fact that [] religious literature is ‘sold’ by itinerant preachers rather than ‘donated’

does not transform evangelism into a commercial enterprise. If it did, then the 

passing of the collection plate in church would make the church service a commercial 

project.”32

While I believe that Vice Chairman Cooksey’s interpretation of 11 C.F.R. § 

109.21(i) is permissible and, were it adopted by the Commission, would survive 

judicial review under principles of agency deference,33 I ultimately am not persuaded 

27 Id. 

28 Capitol Sq. Rev. and Advisory Bd. v. Pinette, 515 U.S. 753, 767 (1995) (emphasis in original).

29 Statement of Reasons of Vice Chairman Cooksey at 4, MURs 7724/7752 (Johnny Teague for 

Congress, et al.), July 12, 2023.

30 Id. 

31 See Watchtower Bible and Tract Soc’y of N.Y., Inc. v. Sanchez-Ramos, 647 F.Supp.2d 103, 115 (D.P.R. 

2009) (“The right to espouse the religious beliefs of one’s own choosing carries with it the right to 

engage in proselytization to disseminate religious teachings and seek converts to join a particular 

faith”). 

32 Murdock v. Commonwealth of Pa., 319 U.S. 105, 111 (1943).

33 Auer v. Robbins, 519 U.S. 452, 464 (1997) (“There is simply no reason to suspect that the 

interpretation does not reflect...fair and considered judgment on the matter in question”).

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by it and abstained when that theory was presented to the Commission.34 In my view 

the regulations are silent on the precise question before us, a silence occasioned by 

the Commission’s intentional, if foolish, decision to provide a safe harbor for 

commercial activity while failing to protect essentially-identical nonprofit and 

religious advocacy.

c. Enforcement against the Church would not have been a prudent use of the 

Commission’s resources.

As the Commission anticipated in 2010, and as the Office of General Counsel 

recommended, I joined three of my colleagues in exercising our “prosecutorial 

discretion to dismiss enforcement matter involving such communications” as these.35 

Even if we had not forecast that result, it is constitutionally compelled. I could 

not have authorized the enforcement of a legal regime that privileges the selling of 

cars over pure religious ministry, nor spent our scare resources to defend a patently 

indefensible position.36

III. The Federal Government Has No Authority To “Caution” Americans 

Against Expressing Their Religious Beliefs.

In some cases, where a monetary penalty appears fruitless or inappropriate, 

the Commission will instead “send a letter admonishing the respondent.”37 In an 

34 Cert. at 1-2. 

35 75 Fed. Reg. at 55960.

36 Chamber of Commerce. v. Fed. Election Comm’n, 69 F.3d 600, 605 (D.C. Cir. 1995) (“[T]he 

interpretation the [Federal Election] Commission has codified presents serious constitutional 

difficulties...We are obliged to construe the statute to avoid constitutional difficulties if such a 

construction is not plainly contrary to the intent of Congress. Accordingly, the Commission is not 

entitled to Chevron deference with regard to its interpretation of the statute”); Nat’l Mining Ass’n v. 

Kempthorne, 512 F.3d 702, 711 (D.C. Cir. 2008) (“Because the judiciary must rightly presume that 

Congress acts consistent with its duty to uphold the Constitution, courts make every effort to construe 

statutes so as to find their constitutional foundations and thus avoid needless constitutional 

confrontations. This canon of constitutional avoidance trumps Chevron deference, and we will not 

submit to an agency’s interpretation of a statute if it ‘presents serious constitutional difficulties”) 

(internal citations and quotation marks omitted); Hernandez-Carrera v. Carlson, 547 F.3d 1237, 1249 

(10th Cir. 2008) (“It is well established that the canon of constitutional avoidance does constrain an 

agency’s discretion to interpret statutory ambiguities, even when Chevron deference would otherwise 

be due”).

37 Fed. Election Comm’n, “Statement of Policy Regarding Comm’n Action in Matters at the Initial 

Stage in the Enforcement Process,” 72 Fed. Reg. 12545, 12546 (Mar. 16, 2007). 

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attempt to lessen the opprobrium of official “admonishment,” the Commission has 

also developed an informal policy of issuing letters, in appropriate cases, cautioning 

a respondent against future violations of the Act.38 The differences between letters of 

admonishment and letters of caution, and their appropriate role in resolving 

enforcement matters, is the subject of rich debate. 

Three of my colleagues voted to issue a letter of caution to the Church for 

producing its television spot, even though “the ad identified Teague only in his 

capacity as operator of the Church and the ad makes no mention of the election.”39 

As already explained, the Church’s communication was bona fide religious 

expression, produced and distributed as part of the Church’s mission. It reflected the 

“sincere religious beliefs and convictions” of Dr. Teague and his congregation.40 It 

falls within the heartland of the First Amendment’s guarantees concerning the free 

exercise of religion. 

Had we sent a letter cautioning Dr. Teague against producing such a 

communication, this agency would have unconstitutionally taken “official action[]” 

that “violated the Nation’s essential commitment to religious freedom.”41 The 

Supreme Court has long defended “[t]he principle that government, [even] in pursuit 

of legitimate interests, cannot in a selective manner impose burdens only on conduct 

motivated by religious belief.”42 And, again, the Commission would have cautioned a 

pastor for attempting to grow his flock, while our formal regulations—with the force 

of law—blessed essentially identical commercial solicitations. 

The central danger posed by our campaign finance regime, since its inception, 

is the likelihood that imprecision and overreach will “blanket[] with uncertainty 

whatever may be said,” causing speakers to “hedge and trim.” 43 A related, and 

38 See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467-468 (2009) (“A government entity has 

the right to ‘speak for itself.’ ‘It is entitled to say what it wishes,’ and to select the views that it wants 

to express...Indeed, it is not easy to imagine how government could function if it lacked this freedom”) 

(quoting Bd. of Regents of Univ. of Wisc. Sys. v. Southworth, 529 U.S. 219, 229 (2000) and Rosenberger, 

515 U.S. at 833) (brackets omitted).

 

39 FGCR at 16.

40 Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 584 U.S. __; 138 S. Ct. 1719, 1723 (2018). 

 

41 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 524 (1993). 

 

42 Id. at 543.

43 Buckley v. Valeo, 424 U.S. 1, 43 (1976) (per curiam) (citation and quotation marks omitted).

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perhaps underappreciated, danger is that the sheer baroque complexity of this 

agency’s rules will lead even people of good faith to struggle in their application and 

lose sight of the bigger picture. 

So it is here. OGC’s recommendation, and my colleagues’ votes on this point, 

were doubtless made in good faith and without malice. But the Constitution protects 

liberty, not good intentions.44 We have an obligation to take greater care, especially 

where our flawed regulations obscure the path.45

CONCLUSION

For the foregoing reasons, I opposed the issuance of a letter of caution, and

voted to exercise our prosecutorial discretion and dismiss these Matters. 

_________________________________ _________________________

Allen Dickerson Date

Commissioner

44 See Freedom from Religion Found. Inc. v. City of Marshfield, Wisc., 203 F.3d 487, 493 (7th Cir. 2000) 

(government action is unconstitutional “‘irrespective of the government’s actual purpose, [when] the 

practice under review in fact conveys a message of endorsement or disapproval‘” under the 

Establishment Clause) (quoting Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring 

op.)).

45 Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 547 (”[A]ll officials must pause to remember 

their own high duty to the Constitution and to the rights it secures”). 

July 12, 2023

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